COURT FILE NO.: CR-19-1630

DATE: 20231201

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Veronica Puls, for the Crown

• and -

K.P.

Alison Craig, for the Defence

Defendant

HEARD: November 10, 2023

REASONS FOR SENTENCE

Baltman J.

Overview

1K.P. has been found guilty in a judge alone trial of numerous human trafficking related offences under the Criminal Code, all involving the complainant K.W. during the period of mid-2016 to January 2017, when she was 18 years old.

2This case began with two complainants and 14 charges. The other alleged victim, S.D., was also purportedly providing sexual services for K.P.’s benefit. However, she disappeared before the trial and I determined that any remaining admissible evidence was inadequate to found a conviction on the charges relating specifically to her (Counts 1-3 on the indictment). In addition, based on the absence of evidence at trial, the Crown invited the dismissal of Count 8 (withholding of travel documents). That left me to address Counts 4-7 (sex trade offences against K.W.) and Counts 9-14 (crimes of violence against K.W.).

3Following a five-day trial, I arrived at the following verdicts:

Count 1: Procuring (S.D.), s. 286.3(1): Not guilty

Count 2: Financial Benefit from Sexual Services (S.D.), s. 286.2(1): Not guilty

Count 3: Assault (S.D.), s. 266: Not guilty

Count 4: Procuring (K.W.), s. 286.3(1): Guilty

Count 5: Financial Benefit from Sexual Services (K.W.), s. 286.2(1): Guilty

Count 6: Human Trafficking (K.W.), s. 279.01: Guilty

Count 7: Financial Benefit from Human Trafficking (K.W.), s. 279.02: Guilty

Count 8: Withholding of Documents (K.W.), s. 279.03: Dismissed

Count 9: Assault (K.W.), s. 266: Guilty

Count 10: Forcible Confinement (K.W.), s. 279(2): Guilty

Count 11: Choking (K.W.), s. 246(a): Guilty

Count 12: Assault Causing Bodily Harm (K.W.), s. 267(b): Guilty

Count 13: Uttering Threat (K.W.), s. 264.1(1)(a): Guilty

Count 14: Sexual Assault (K.W.), s. 271: Guilty

4The parties have agreed that in accordance with the principles set out in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, my verdicts on Counts 4 and 5 should be conditionally stayed, as they are subsumed within Counts 6 and 7.

The Facts

(a) Circumstances of the Offence

5The complainant, K.W., met K.P. in 2016, when she was 17 years old. They were both then living in Halifax, Nova Scotia. She had left high school and was working in a hotel. He was 25 years old and unemployed. They embarked on a romantic relationship.

6After K.W. turned 18, she and K.P. decided she should become a sex worker so that she could earn more money. Although K.W. created her own ads and communicated with the clients, K.P. generally directed her work activities. Eventually they relocated to Ontario, where she could earn more money. K.P. rented a townhouse where he and K.W. lived. K.P. controlled all aspects of K.W.’s sex work, including when to work and at which hotels; what rates to charge; and how much money he expected her to earn. He also took all of her earnings, other than small amounts she kept to buy food. He had no legitimate source of income himself.

7On several occasions K.P. was physically violent towards her. The trial focussed on assaults that occurred within the final two weeks of their living together, after K.P. had become convinced that K.W. was giving her earnings to another man. During that period K.P. forcibly confined her in the townhouse, through both physical and psychological intimidation. He repeatedly threatened her, stating she was “going to end up in the back of a trunk somewhere and ….nobody would ever hear about [her].” On several occasions K.P. punched her in the face or struck her face and body with metal zip ties. One time he punched her so hard in the mouth that he broke one of her front teeth.

8K.P. also choked K.W. several times during the two weeks leading up to her escape. On a few of those occasions, he choked her to the point that she was in and out of consciousness, one time so far that K.P. became alarmed and shouted at her to wake her up. Throughout these sessions he accused her of handing her earnings over to another man.

9Finally, K.W. recounted two separate occasions when K.P. committed sexual assault by pinching her vaginal area, once as a punishment for disobeying his instructions, and another during the final two weeks in the townhouse when he believed she was hiding money from him.

10Although offered the opportunity, K.W. declined to provide a victim impact statement. That is unsurprising, as it was apparent from her testimony at trial that K.P. continues to exert a strong influence over her. While K.W. recognizes that he controlled and abused her over a lengthy period, she is still in love with him. Indeed, she conceived a child with him after these charges were laid. Such is the twisted hold that he continues to have over her.

(b) Circumstances of the Offender

11In this case, the court had the benefit of both a standard Pre-Sentence Report, prepared by a Probation and Parole Officer, and an Enhanced Pre-Sentence Report (EPSR), prepared by Michelle Richards. The latter was provided at the behest of defence counsel¹.

12Ms. Richards is a Registered Social Worker with 16 years of experience of engaging with vulnerable communities in various contexts. In preparing her report, Ms. Richards conducted multiple interviews with K.P., and also interviewed his mother, Tina Lucas.

13K.P. is 32 years old. He is biracial, as his mother is white and his father is Black. He self-identifies as a Black man.

14K.P. grew up in an impoverished area of Dartmouth, Nova Scotia. The residents were predominantly Black. There was a significant amount of crime, violence, and drug dealing in his neighbourhood. Police presence was frequent, and, from the vantage point of his mother, much more aggressive toward Black residents than to white persons like herself.

15K.P.’s parents were not married and did not live together, and he was raised primarily by his mother. However, he describes his family as good and his childhood as “okay”. He is the eldest of five children and was diagnosed with ADHD at a young age, which caused him to struggle in school. He left high school in Grade 11.

16When he was 20 years old and still living in Dartmouth, he was convicted of possession of a firearm and failure to comply with recognizance, for which he received a 3-year sentence.

17He shares close relationships with his four siblings. His paternal half-sister passed away in January of 2022 while he was incarcerated. He had been close with her and this loss was painful for him. He was also deeply saddened by the earlier loss of his grandmother, who was his “favourite” person.

18K.P. describes his marital status as single. However, he is the biological father of two sons, ages 4 and 12, who reside in Nova Scotia. He does not provide child support to them. He states that “to his knowledge” he is not the biological father of K.W.’s daughter but is present in her life and “considers her as his daughter”.

19K.P. reports that most of his work experiences have been within construction and other forms of labour, either with his father or at various “under the table” jobs. He states that post-incarceration, he intends to obtain a Class 1 License, which is required to operate a dump truck. He believes that his mother’s partner, who is employed in this area, can help him find employment.

20Based on the material filed, it is apparent that K.P.’s upbringing has been affected by anti-Black racism. He grew up in a neighbourhood plagued by crime, where the police response was to target and blame Black youth. He also reports witnessing and experiencing racist moments while in school and observing differential treatment from white adults.

Positions of Crown and Defence:

21The Crown seeks a 14-year global sentence, broken down as follows:

Counts #4-7: Human Trafficking

Count 4 (procuring): Kienapple

Count 5 (financial benefit): Kienapple

Count 6 (human trafficking): 12 years

Count 7 (financial benefit): 6 years concurrent

Counts #9-14: Violence

Count 9 (assault): 2 years concurrent

Count 10 (forcible confinement): 6 years concurrent

Count 11 (choking): 2 years consecutive

Count 12 (assault bodily harm): 2 years concurrent

Count 13 (uttering threat): 2 years concurrent

Count 14 (sexual assault): 4 years concurrent

22The Defence seeks a 6-year sentence, concurrent on all counts.

23Both parties agree that the standard “Summers” credit of 1.5 to 1 for restrictive and difficult pre-sentence custody results in a deduction of 3 years and three months. Both parties also proposed a further one-year reduction to recognize the punitive pre-trial jail conditions as a mitigating factor (a “Duncan” credit), in particular the poor medical care allotted. K.P. suffered from both an abscessed tooth and a broken hand while in custody, and necessary medical treatment was unreasonably withheld and delayed.

24Beyond that, the defence seeks a one third credit (i.e. one year and 3 months) for stringent bail conditions (“Downes” credit), which would result in a further deduction of 437 days. The Crown opposes any such deduction.

Mitigating and Aggravating Factors

25Numerous relatives and family friends provided letters of support for K.P., describing him as a kind and loving person. His mother, along with other family members in Nova Scotia, remain loyal to him and have pledged to support him once he is released from custody.

26Beyond that, there are no mitigating features. There are, however, several aggravating features:

• Although dated, K.P. has a criminal record that includes violence, having been convicted of aggravated assault and robbery as a youth, and possession of a prohibited weapon in 2011;

• The impugned acts began when K.W. was only 18 years old;

• K.P. exploited K.W.’s romantic interest in him for his own financial purposes;

• K.P. exercised significant control over K.W., including her work locations, her schedule, and what sexual acts she could or could not perform;

• K.P. took almost all of the money K.W. earned as a sex worker and lived largely, if not entirely, off of those proceeds;

• His dominion over her as a pimp persisted for close to a year;

• On several occasions he used physical violence to keep K.W. in line or to punish her for perceived wrongdoing;

• Towards the end of their relationship, he forced her into prolonged isolation, which ended only with her physical escape;

• During that confinement he choked her on several occasions, at times to the point that she passed out, thus putting her life in danger;

• Despite the absence of a formal victim impact statement, it is clear from K.W.’s testimony at trial that K.P. continues to influence and manipulate her; this includes her provision of a false “recant” affidavit in an effort to get him out of jail (as noted at paras. 29-30 and 53-55 of my trial decision: R. v. K. P., 2022 ONSC 7135).

Sentencing Considerations for Human Trafficking:

27Both counsel supplied caselaw that set out particular sentences that have been imposed in other cases. As Boswell J. observed in R. v. A.E., 2018 ONSC 471 at para. 65, defining a typical range for human trafficking is difficult because of the wide variety of circumstances in which these offences are committed. Accepting that sentencing is a highly individualized process, counsel agree with his observation that sentences for these offences now frequently range from roughly 4 to 8 years. See also Kelly J. in R. v. T.T., 2022 ONSC 722, at para. 30.

28I add the word “roughly” for a reason. The range is merely that. It is not a limit. Cases with highly sympathetic factors may bring it down. Conversely, cases with heavily damaging factors may push it up.

29Driving these assessments is the brutal nature of pimping and those who engage in it. It is akin to slavery. The pimps enslave females and live off their earnings. They are smart enough to manage their sex workers so as to ensure a steady income stream, but too lazy or greedy to pursue legitimate employment. Often, as in this case, they delude a young and needy female into believing they love her.

30This message cannot be new. Courts in this province have, over many years, repeatedly denounced the exploitive and degrading behaviour of pimps. In R. v. Glasgow, [1993] O.J. No. 1502, the court emphasized that pimps are “not harmless”. They enslave females upon whose earnings they prey “by exploiting the survival needs of the homeless and unloved”: para. 3.

31More recently, in R. v. Lopez, 2018 ONSC 4749, Campbell J. commented at para. 52 that, at its most basic level, the sex trade is a form of “slavery, with pimps living parasitically off the earnings of prostitutes”:

The prostitutes that are the subject of this coercive exploitation are typically vulnerable and disadvantaged women, who have been manipulated and taken advantage of by the pimp. Even in cases where their initial participation in the sex trade is voluntary…the relationship invariably becomes one-sided and exploitive…Accordingly, in a very real and practical sense, pimps traffic in the human resources of prostitutes, callously using their sexual services as an endlessly available commodity to be simply bought and sold in the market place.

32At para. 53 of Lopez, Campbell J. identified various circumstances as relevant in the determination of sentence. Several of these factors were previously set out in R. v. Tang, 1997 ABCA 174, and R. v. Miller, [1997] O.J. No. 3911 (Gen. Div.), and are known collectively as the “Tang/Miller factors”. They include:

1. The degree of coercion or control imposed by the accused on the complainant’s activities;

2. The amount of money received by the accused and the extent to which he allowed the complainant to retain her earnings;

3. The age of the complainant and any special vulnerability she may have;

4. The working conditions in which she was expected to operate, including health and safety concerns;

5. The degree of planning and sophistication, including whether the pimp was working in concert with others;

6. The numbers of customers the complainant was expected to service;

7. The duration of the exploitative conduct;

8. The degree of violence, if any, apart from that inherent in the accused’s parasitic activities;

9. The effect on the complainant of the accused’s exploitation;

10. The extent to which the accused compelled sexual favours for himself from the complainant;

11. Any attempts by the accused to prevent the complainant from leaving his employ.

33Keeping those factors in mind, in reviewing the caselaw supplied by counsel, I found the following to be particularly instructive in this case:

• R. v. Augustin and St. Armand, 2022 ONSC 5901: Justice Chozik imposed a sentence of 8.5 years on Augustin, noting that but for his background, remorse, and the insight he showed, she would have imposed a sentence in the nine-to-ten-year range. He had been found guilty by a jury of human trafficking, procuring, and receiving a material benefit from those acts. The complainant serviced 8 -10 men a day for over two and a half months, and saw none of the proceeds. Before being sentenced, Augustin accepted responsibility for his offences, apologized to the victim and impressed the judge as being genuinely remorseful.

• R. v. T.T., 2022 ONSC 722: The trial judge concluded that a fit sentence was 9 years – 6 years for human trafficking and 3 years consecutive for sexual assault. (She reduced the sentence to eight years for harsh pre-sentence custody). The victim was 17. The offender sexually assaulted her. He and his associate took photos of her and posted them online advertising sexual services, which she provided for three days. The offender and his associate kept all the money, and gave the victim drugs and alcohol. They also repeatedly raped her. She tried to leave but was unable to. The offender was “extremely remorseful” for his conduct. He apologized to the victim, and took “full responsibility for his actions.” Justice Kelly sentenced the offender to 9 years incarceration – 5 years for human trafficking and 3 years consecutive for sexual assault.

• R. v. A.S., 2017 ONSC 802: The trial judge imposed a sentence of 13 years – 12 years for human trafficking, with sentences for related offences and offences of violence to run concurrently, and a 2-year sentence for choking to run consecutively (reduced to 1 year for totality). The offender was highly abusive, repeatedly sexually assaulted the complainant, choked her on one occasion, and left her bleeding by a dumpster after severing her Achille’s tendon with a piece of glass. The victim was a troubled Indigenous young woman.

• R. v. Jordan, 2019 ONCA 607: The Court of Appeal upheld a 9-year sentence by Coroza J., (as he then was), consisting of 8 years for human trafficking/procuring where the offender exploited his girlfriend for several years, was violent and controlling with her, pressured her to work during her pregnancy, and lived off her earnings, plus a further 1 year for intimidating a justice participant (reduced from 2 years for totality).

Analysis

34Section 718.04 of the Criminal Code highlights the objectives of denunciation and deterrence when a court is imposing a sentence for an offence that involved the abuse of a female person. Section 718.2 of the Code also requires a court to consider other sentencing factors that apply here, in particular where the offender has abused an intimate partner, abused a position of trust, and where the offence had a significant impact on the victim.

35All those factors are present here, along with several of the features identified in Lopez and related cases, including Tang/Miller. K.W. was still a teenager when she met K.P., fell in love with him, and began working for him, essentially as a sex slave. He traded on her love for him and abused her trust. She followed him to Ontario in the hope of a better life and instead he set her up as his personal bank machine. He controlled when and where she worked. He took virtually all of her earnings. If she disobeyed his instructions or didn’t produce as much money as he expected, he beat her. This abuse continued over approximately 12 months. It culminated in two weeks of forced isolation, sexual assault and physical battery, including choking. While he was in custody awaiting this trial he persuaded her to sign a false affidavit designed to secure his release. To this day she remains under his insidious influence.

36I also recognize that K.P. is a Black man raised in poverty, largely by a single parent, and in a neighbourhood where he was stigmatized and discouraged. His circumstances undoubtedly have contributed to the path he has taken and this, along with the restraint principle and over-incarceration of Black men in Canada is relevant to sentencing: R. v. Morris, 2021 ONCA 680.

37However, even accounting for the disadvantages K.P. has faced, these crimes are horrid and demand both strong denunciation and significant specific deterrence. It has to be made clear, to K.P. and others who are considering this line of “work”, that a woman is not a wallet. She is not to be callously used and traded for their upkeep.

Conclusion as to the appropriate sentence

38A sentence is required here that reflects the violent and dehumanizing nature of the human trafficking and procurement offences, but also separately recognizes the egregious physical brutality here, in particular the choking incidents. In my view, that sentence should be:

• 9 years imprisonment for human trafficking

• 6 years concurrent for benefitting from human trafficking

• 2 years concurrent for assault

• 4 years concurrent for forcible confinement

• 2 years consecutive for choking

• 2 years concurrent for assault causing bodily harm

• 2 years concurrent for uttering threat

• 4 years concurrent for sexual assault

39I recognize that the human trafficking aspect of this sentence goes slightly above the usual range of 4-8 years. In my view, the extreme brutality and manipulation seen in this case, highlighted in paras. 26 and 35 above, requires that extension.

40Beyond that, the sentence for choking should, in my view, be consecutive rather than concurrent. As several cases have noted, while this crime is typically employed as a means to achieve another, it is often the more serious and life-threatening. That is particularly so where, as here, there were multiple incidents of choking and on at least one occasion the victim has been rendered unconscious: R. v. Lemmon, 2012 ABCA 103, paras. 25-29; R. v. A.S., 2017 ONSC 802, paras. 38-39; and R. v. Albornoz-Vaca, 2022 BCSC 2116, paras. 58-59.

41In sum, pimping of the nature seen here, when combined with life threatening violence such as choking to unconsciousness, requires a double-digit sentence.

Pre-sentence custody

42From the total sentence of 11 years, there shall be the following reductions for pre-sentence custody:

• 3 years and 3 months for the Summers credit

• 1 year for the Duncan credit

43I would not grant any reduction for the strict conditions imposed while K.P. was on bail, for three reasons. First, he never sought to vary them. Second, there is no evidence of how the conditions limited or restrained him from what he might have otherwise done, e.g. pursue schooling, employment, or rehabilitation. Third, while on bail he violated the no contact order with the victim.

Sentence to be imposed and ancillary orders:

44I conclude that a fit sentence for K.P. is:

Count 6: Human Trafficking, s. 279.01: 9 years

Count 7: Financial Benefit, s. 279.02: 6 years, concurrent

Count 9: Assault, s. 266: 2 years, concurrent

Count 10: Forcible Confinement, s. 279(2): 4 years, concurrent

Count 11: Choking, s. 246(a): 2 years, consecutive

Count 12: Assault Causing Bodily Harm, s. 267(b): 2 years, concurrent

Count 13: Uttering Threat, s. 264.1(1)(a): 2 years, concurrent

Count 14: Sexual Assault, s. 271: 4 years, concurrent

45From the 11-year sentence, K.P. will be credited with 4 years and 3 months for pre-sentence custody.

46In addition, I make the following ancillary orders:

• a SOIRA order under s. 490.012

• a DNA order under s. 487.051 of the Criminal Code

• a weapons prohibition order under s. 109(2)(a) of the Criminal Code for 10 years and under s. 109(2)(b) for life; and

• a non-communication order with the complainant under s.743.21 of the Criminal Code while K.P. is in custody.

47I waive the Victim Fine Surcharge in view of the significant term of imprisonment that K.P. will serve.

Baltman J.

Released: December 1, 2023

COURT FILE NO.: CR-19-1630

DATE: 20231201

Footnotes

1. 1Although K.P. also identifies as Indigenous, and his counsel requested a Gladue Report, the Indigenous Network (a.k.a. Peel Aboriginal Network) declined to provide one. Ms. Kris Pheasant, a Gladue Writer on behalf of that organization, advised counsel in her email of September 29, 2023 that they would not be submitting a Gladue Report for K.P. because they “were not able to confirm Indigenous ancestry”. She added that the Indigenous Network does not provide Gladue Reports for individuals claiming a Metis background through the “Eastern Woodlands Metis” as at this time, the Eastern Woodlands Metis “is not a recognized Metis group”, but rather is currently described as a “self-invented organization of people that pay a membership fee to get a membership card.” She added that this may change if the EW Metis can establish some standing and recognition from other Metis groups, First Nations groups, and the Canadian government. (Ex. 3).